Wednesday, July 12, 2017

How to Draft a Photo Services Contract

As a published photographer and a lawyer who represents other photographers, here are the issues I recommend thinking about when drafting a photo services contract.

Deliverables
This is just as important as pricing. You need to spell out what is it your clients should expect to receive. How many photos will be edited? How many pages in the album? Will there be an additional charge for a fancy album cover?

Your Rights to Photos
Very important, if you know the photos will turn out super interesting. E.g., if you are photographing at a gorgeous location, somebody well-known, unique props, etc. Then you will want the right to use the photos for your own portfolio, social media, books and advertising materials.

I have photographed lots of college beauty pageants. If you negotiate the right to host official pageant voting on your social media account or website, it will drive lots of traffic of potential clients to you.

I have photographed Miss Universe candidates swimming underwater with the whale sharks in the Philippines. Needless to say, photos like that are useful in any photographer’s career, so make sure you get the right to use them in your contracts and/or model releases. Otherwise, you could be missing out on great professional opportunities.

Scope and Extra Work
Outline how many hours are you expected to stay at the shoot and state that extra hours will be billed at $___/hr extra

Special Edits
If you are good at Photoshop, clients will start asking you for labor-intensive edits, such as slimming them down, removing wrinkles and receding hairlines, etc. Your contract should spell out that basic edits (sharpening, color, contrast, etc.) are included in the price but extra edits are billed extra.

Food
Should be provided or paid for by the client on long shoots. This is not common sense to every client.

Access
Client has to agree to ensure you are allowed to set up as many lights as you need and access electrical outlets. Some venues limit that.

Termination
State how many days in advance they can cancel the shoot and whether they will receive a full or partial refund. State on what terms you can cancel the shoot yourself and whether you have an obligation to provide a substitute.

Quality
Art quality is, of course, subjective but you can state that your work product will generally be at least as good as the samples you provided. But make sure you provide realistic samples, not your “best of the best ever” portfolio. Some photographers recommend including a guarantee to capture “key moments” (e.g. “the kiss” at the wedding) but I discourage it. What if you fail to deliver? The more guarantees you give, the more vulnerable to liability you become. If the clients insist on certain guarantees, then include them if you agree but do not voluntarily bind yourself to unnecessary liability.

Simple English
This is my advice for all contracts – from complex IP property transfers to service contracts. I am not sure why I see so many photographers trying to outlawyer the most convoluted lawyers. You clients need to understand the contract without having to seek professional help. This increases your chances of being hired and avoiding unpleasant misunderstandings down the road.

Archiving
How long will you keep the images in your client’s Dropbox folder or other service?

Turn Around Time
When products will be delivered, how long they have to order, etc.

Editing Restrictions
Some photographers feel so strongly about their work that they don’t want clients to lay their hands on the final work product and apply horrendous filters and other edits. Then, of course, they’ll post on their social media accounts with your name attached as if you are responsible for this degradation.

If you are one of those photographers, then consider including a provision stating that clients cannot edit, transform or make derivative works of your photos.

Copyright Notice
You can give client an option to either: (a) pay you full price to receive unmarked photos; or (b) receive a discount but then you mark all photos with your copyright notice which they cannot remove.

Substitute Photographer
If you can’t attend the shoot in case of emergency, you should have the right to provide a substitute photographer. Your contract with the second shooter must state that the copyright in the photos s/he takes will belong to you. Otherwise, copyright normally belongs to the person who actually clicked the shutter.